Senate committee beats up on stream buffers and plastic bag ban

An example of a stream buffer, designed to protect waterways and environmentally sensitive areas. Not pictured: Crime.

Stream buffers: Dens of iniquity, sanctums of misdeeds, loci of vice.

Members of the Senate Agriculture/ Environment Committee this week on buffers and the plastic bag ban, while trying to sneak a coastal development provision through the gatekeepers.

The committee discussed HB 56, Amend Environmental Laws, a potpourri of legislation that survived crossover.

Sen. Andy Wells, a Hickory Republican and real estate agent, repeated the evidence-free assertion that buffers, strips of bushes and trees, harbor not only wildlife, but also criminals.

Sen. Mike Woodard, a Durham Democrat, wanted to know more. “Do you have any data from law enforcement on crimes committed in buffers in the Jordan Lake watershed?” he asked Wells.

“I don’t have any,” Wells replied.

OK, so maybe there’s not that much crime in the buffers. But, Wells said, forcing property owners to add 50 feet of green space to protect environmentally sensitive areas is tantamount to a partial taking. In this case, property owners should receive a tax break if they are required to build them.

“Senator Wells, how is maintaining a buffer an imposition, when in many case they add value to a property? I would suggest there’s a benefit to the owner. Why exclude them from the tax rolls?” Woodard said. “Help me understand.”

“You’re giving up 50 feet of your land; 30 feet of it you can’t even prune,” Wells replied. “They block visibility of the water feature you’re trying to see.”

It should be noted that Wells is a managing parter with the Prism real estate firm, which has several projects near waterways. For example, Prism is selling 96 acres off Sand Pit Road near Hickory. The company’s website advertises the recreational/residential land as having a “quarter-mile bordering the Jacobs For River and six-tenths of a mile of creek frontage.”

Prism is selling another 46 acres with the amenity of 800 feet of creek.

Giving property owners a tax break, Wells said, “encourages people to build buffers.”

But what about the crime?

On to the plastic bag ban, which has been in effect for coastal counties since 2010. The primary purpose of the ban is to keep sea turtles and other marine life from becoming entangled in the bags and dying.

“The ban makes it more expensive to do business on coast,” Sen. Bill Cook, a Republican from the coast, said, citing no data. “There are more bags on the beach than there were before.”

Again, Cook had no hard numbers, only hearsay. And if there are more bags littering the beach, it’s possible they’re being imported and discarded by ne’er-do-wells from other counties and states.

If you are for small government, you should not repeal this ban,” Brooks Rainey Pearson, an attorney with the Southern Environmental Law Center, urged the committee. “Locals love this.”

While HB 56 would allow bags to roll across the Outer Banks, it also would permit vast swaths of pavement to be built on environmentally sensitive coastal areas.

The bill language was cut and pasted from SB 434 to address concerns of residents of a Wilmington-area subdivision. The original developer had not complied with coastal stormwater management rules; these govern, in part, the amounts of allowable impervious surface.

Too much pavement can harm water quality because runoff containing yard fertilizer, motor oil and other chemicals, flows into streams, sounds, shellfish habitats and the like. Pavement also increases the risk of flooding.

But lo and behold, the residents found their properties violated stormwater rules. The bill would give these property owners — and potentially thousands of others up and down the coast — a variance.

“This is to help these neighbors,” Cook said, “and protect people from unscrupulous developers.”

If only the bill’s scope were that narrow. Instead, it would apply to 175 other coastal subdivisions, said Tracy Davis, director of DEQ’s Division of Energy, Mineral and Land Resources. He encouraged the committee to reconsider the provision. DEQ is working with the Wilmington property owners, including by extending deadlines, to help them comply with the permit.

The bill’s next step is the Finance Committee.



GOP introduces bills to roll back renewable energy standard, repeal plastic bag ban

Plastic bags, once banned for commercial use on the Outer Banks, could make a comeback under a new House bill. Discarded bags can harm marine life, which mistaking them for food, eat them. (Photo: Wikicommons)

In 10,000 years, archaeologists will excavate our landfills and ask one another, “What was the deal with the 21st century obsession with plastic bags?”

The environmental bane –500 billion used worldwide each year — litter the roadsides, tree branches and, most important for the Outer Banks, the beach and the sea. Turtles and other marine life can get entangled in the bags, or eat them, mistaking them for food. Plastic bags and other plastic items do not biodegrade, but just break down into tinier pieces.

There is some division even among environmental groups about which is worse for the planet, paper or plastic. But the plastic bag’s harm to the marine life is irrefutable.

For these reasons, retailers on the barrier islands — Ocracoke, Hatteras and Bodie islands, and Corolla and Carova in Currituck County  — have been prohibited from providing plastic bags since 2010.

But that requirement would now be only voluntary under House Bill 271, which will be introduced today. In effect, it would repeal the ban on plastic bags on the Outer Banks. In its place, the bill allows for a “voluntary educational program informing citizens of the availability of recycling sites throughout the entire State.”

The bill contains several problems First, people can already recycle their plastic bags at the grocery store. Yet, discarded bags are ubiquitous, indicating that mere encouragement isn’t working. Secondly, it’s difficult to recycle this type of plastic. It doesn’t melt easily.  The bill also contains language that “businesses were required to pay consumers for bringing reusable bags to the stores.” The payment came in the form of a credit per bag — 5 cents. Customers could also request a paper bag. Nonetheless, the bill contends the ban allegedly has hindered business’ ability to hire more employees and expand. Well, plastic bags are a job creator: Somebody has to be paid to pick them up off the beach.

Primary sponsors: Three Republicans, Reps. John Bell, John Bradford and Beverly Boswell.

The Renewable Energy Portfolio Standard turns 10 this year. Under the REPS, as it’s known, electric utilities have been required to sell a portion of their power from solar, wind and other clean sources. And almost every year since its passage, there conservative lawmakers have tried undo it. So far, those attempts have failed, but the measure returns this year in the form of House Bill 267, which  would rollback requirements under the Renewable Energy Portfolio Standard.

In 2012, the requirement was 3 percent of a utility’s 2011 retail sales; in 2015, that percentage increased to 6 percent of 2014 sales. Next year, that percentage was scheduled to increase to 10 percent, and ultimately reach 12.5 percent by the year 2021. But HB 267 reduces  the mandate to just 8 percent, without any future increases. Under the REPS, energy efficiency is allowed to account for up to a quarter of a utility’s savings. The new bill increases that number to up to 40 percent.

Primary sponsors: Reps. Jimmy Dixon and John Bell, both Republicans.


The State of the Environment: Good, bad and meh

Like a box of Cracker Jack, there is a surprise inside the North Carolina Conservation Network’s State of the Environment report: While North Carolina is failing to reach some basic environmental benchmarks, it is meeting others — despite a legislature that has at times been hellbent on favoring polluters over people.

The NCCN, a nonprofit that collaborates with more than 100 environmental and social justice groups statewide, released its first State of the Environment yesterday.

Based on 116 data sets, it’s a thorough assessment of the health of the state’s residents and ecosystems. The report also sets goals and priorities for the state at a pivotal moment in climate history. International scientists have given the world until 2030 to keep global temperatures in check or risk the precipitous and cataclysmic effects of climate change.

The report’s goals are simple, among them: Ensure we have safe and affordable drinking water. Maintain the health and resilience of our coastal habitats and estuaries. Require agribusinesses to be good neighbors. Eliminate racial health disparities and environmental injustices. Prevent “forever chemicals,” like perfluorinated compounds (PFAS) from entering the environment.

“We believe that a great majority of North Carolinians across the ideological spectrum would agree that each of the goals is desirable,” reads the executive summary. “… However, the goals and indicators leave aside the question of what policy interventions are needed … or whether government has a role in addressing a trend at all.”

Over the past 10 years in particular, though, state and local officials have been responsible for enacting policies that have contributed to sprawl, habitat loss, pollution and racial injustice.

Eighty-one percent of North Carolinians commute to work alone, the report states, and transportation is a main driver of greenhouse gases. Nonetheless, the state Department of Transportation and local officials in southern Wake County have pressed on with the proposed Complete 540 toll road, yet another mega-highway that would add congestion to arterial streets and roads, as well as spurring suburban and exurban sprawl. It’s on legal hold, though, thanks to several species of endangered and freshwater mussels that live along the route. (Thank you, Atlantic pigtoe.)

Hate sprawl? Thank the Atlantic Pigtoe mussel, a threatened species, for temporarily halting the Complete 540 toll road. (Photo US Fish & Wildlife Service)

Living shorelines better protect the coast from floods and erosion than hardened structures, such as terminal groins. But each year, a bill emerges from the legislature to allow yet another groin to be built.

Twenty percent of homes in coastal counties lie within a 500-year flood plains, the report goes on. The 500-year flood plain used to be considered a safe place to build, being that there was only a 0.2 percent chance of an inundation. Now we’ve seen three hurricanes since 2016 that drowned areas thought to be on higher ground. In other wordsd, 500 is the new 100.

On average, Black and Native Americans in North Carolina die at a younger age than whites, the report says. They are also more likely to live near hazardous waste sites, industrialized livestock operations and sources of air pollution, such as factories and highways.

Nonetheless, lawmakers have consistently passed Right to Farm Acts that all but prohibit neighbors of mega-hog farms from suing corporate giants Murphy-Brown and Prestage for nuisance.

Some conservative lawmakers seem intent on subverting the progress the state has made. They have introduced bills that are a sharp rebuke to Gov. Roy Cooper’s Executive Order 80, a clean energy mandate — among them, repealing the Renewable Energy Portfolio Standard, penalizing drivers of electric cars and hybrids with high registration fees, and  banning wind farms within 100 miles of the coast.

The impenetrable Senate Bill 559, written by Duke Energy, would likely hike customers’ electric bills by allowing the utility to deploy “alternate rate mechanisms.” That’s jargon for allowing Duke to set a base rate for multiple years and during that time, to avoid the requirement of a public rate case hearing.

These potential increases would further hurt low-income residents, especially those living at or below the federal poverty threshold. State of the Environment reports that these households spend at least 18 percent of their income on energy.

Now the surprise: some state and local officials have passed rules and laws to undo the damage. The NC Department of Environmental Quality is requiring Duke Energy to excavate its remaining unlined coal ash pits. The department has also worked with the Environmental Management Commission to establish rules regarding the toxic air pollutant methyl bromide.

State lawmakers Pricey Harrison, Chuck McGrady, Vickie Sawyer, Harper Peterson, Billy Richardson and Kirk DeViere have all introduced bills to improve our environment. (Whether this bills will be exiled in committee is up to the House and Senate leadership.)

And the report lists pages of possible solutions to the state’s most pressing problems. Fund land conservation. Stop building in the flood plain. Incentivize reforestation. Update groundwater and surface water standards. Phase out the antiquated lagoon and sprayfield system for swine farms. Implement regulations on poultry. Prioritize environmental justice. Ban bee-killing pesticides. Reduce plastic pollution. (Perhaps reinstate the plastic bag ban along areas of the coast?)

NCCN’s authors acknowledge these solutions are “not at all policy-neutral,” and “reflect an agenda for action from across North Carolina’s conservation and environmental communities.”

“It outlines an array of policy interventions that, if adopted, will improve North Carolina’s economy, environment, public health and resilience.”

Which beggars the question: Why are lawmakers incapable of doing this?


Public records lawsuit dismissed after Boswell releases emails to constituent

The ACLU of North Carolina reached a settlement agreement with Rep. Beverly Boswell (R-Beaufort) in a lawsuit over public records.

Boswell released unredacted emails about a plastic bag ban after Kitty Hawk resident Craig Merrill filed a lawsuit over them. She represents in North Carolina House District 6, which includes parts of Beaufort, Dare, Hyde, and Washington counties.

The lawsuit was permanently dismissed Monday, according to a court document.

“Under the law, North Carolinians have a right to know about the decisions our representatives make on our behalf,” said Chris Brook, Legal Director of the ACLU of NC. “Though it took far too long, we are glad that Rep. Boswell finally agreed to follow that law and fulfill her responsibilities to her constituent. Transparency is essential to our democracy, and public records laws are instrumental in holding our elected officials accountable to We the People.”

It took Boswell more than a year after the lawsuit was filed for her to release the documents Merrill requested.

“In this day and age, it shouldn’t be this hard for North Carolinians to see public records,” Merrill said after the dismissal. “I am glad this request has finally been resolved, but I hope all officials take note and respect the right of all people to have transparency from their government.”

Boswell isn’t the only legislator who has refused to release her emails. NC Policy Watch tried to obtain emails about judicial redistricting from Rep. Justin Burr (R-Stanly, Montgomery) last year and he claimed “legislative immunity.” His email denying the public records was similarly worded to Boswell’s initial refusal to Merrill.

“All records are not ‘public records’ even though those records may have been created, received, or in the custody of a public official,” both emails state.

The emails go on to explain that documents in the custody of a legislator are “treated uniquely under the law” and that “Article 17 of Chapter 120 of the General Statutes, Confidentiality of Legislative Communications, provides that requests from legislators to legislative staff, and documents prepared by legislative staff upon the requests of legislators, are not public records, and there existence may not be revealed, unless the legislator making the request so instructs.”

Boswell released her emails before the courts actually weighed in on the merits of the ACLU and Merrill’s case. It will be interesting to see if other lawmakers will follow suit.

Boswell releases emails amid ACLU lawsuit pressure

Rep. Beverly Boswell

The ACLU of North Carolina has forced a House Representative’s hand in a battle over public records.

Rep. Beverly Boswell (R-Beaufort) “decided to” release her unredacted emails after Kitty Hawk resident filed a lawsuit. She had initially refused to release anything, then later released documents concealing the identity of everyone her office communicated with.

The full release comes more than a year after one of her constituents, Craig Merrill, first asked for public records of phone and email correspondence between her office and the residents and businesses she represents in North Carolina House District 6, which includes parts of Beaufort, Dare, Hyde, and Washington counties.

The ACLU filed the public records lawsuit on behalf of Merrill in January.

“We are glad that Representative Boswell finally agreed to do the right thing and stop hiding who she was communicating with about the public’s business,” said Chris Brook, Legal Director of the ACLU of N.C. “North Carolinians deserve transparency from their elected officials – and the law requires it.”

In a letter addressed to Brook about the records release, the special deputy attorney general who represents Boswell, Olga Vysotskaya de Brito, said the lawmaker “made a decision to disclose the in-redacted set of documents” Merril requested.

“In our view, today’s production of documents resolved the pending controversy,” the letter states.

They also filed a motion to dismiss the lawsuit. The motion essentially states the case is moot and should be dismissed for lack of subject matter jurisdiction.

In a motion for summary judgment filed last month, the ACLU said that there was no legal justification for Boswell to conceal who she and her office were corresponding with on matters related to her work as a public official on issues including the Outer Banks plastic bag ban.

Many of the documents Boswell provided contain the following message: “Email correspondence to and from this address is subject to North Carolina Public Records Law and may be disclosed to third parties.”

“The public deserves to know how our representatives are conducting business on our behalf so that we can hold them accountable,” Merrill said. “I am glad my representative has finally agreed to follow the law, but it never should have taken more than a year and a lawsuit for her to do the right thing and be open about her work with a constituent.”

Brook said Wednesday that Boswell provided the unredacted records after they filed a motion for summary judgment arguing that Merrill was legally entitled to know who she was corresponding with on matters of public interest.

“Put another way, Representative Boswell only provided unredacted records after we made plain that we would continue pursuing the matter in court,” he said. “The ACLU-NC has not agreed to dismiss the lawsuit as it is not yet fully resolved. The state Public Records Act entitles individuals who substantially prevail in public records litigation to receive attorneys’ fees. We will be seeking fees to recover money spent litigating a case that we offered Representative Boswell every opportunity to resolve prior to filing a lawsuit.”